In re Eakin

• Decision Date: 24 March 2016
• Docket Number: No. 13 JD 15,13 JD 15
• Citation: 150 A.3d 1042
• Parties: IN RE: J. Michael EAKIN, Justice of the Supreme Court of Pennsylvania
• Court: Pennsylvania Court of Judicial Discipline

150 A.3d 1042

IN RE: J. Michael EAKIN, Justice of the Supreme Court of Pennsylvania

No. 13 JD 15

Court of Judicial Discipline of Pennsylvania.

March 24, 2016

Francis J. Puskas, II, Deputy Chief Counsel, Judicial Conduct Board

James P. Kleman, Jr., Deputy Counsel

Elizabeth A. Flaherty, Deputy Counsel

William C. Costopoulos, Esquire

Before: Colville, P.J., Mullen, Panella, Shrager, Barton, and Hardaway, JJ.

PER CURIAM

I. INTRODUCTION

History of the Case

The Judicial Conduct Board (Board) filed a Complaint with this Court on December 8, 2015 against J. Michael Eakin (Respondent), then a Justice of the Pennsylvania Supreme Court. The charges were founded upon allegations that the Respondent had participated in the exchange of e-mails with friends and professional acquaintances which were insensitive and contained inappropriate references to matters involving gender, race, sexual orientation, and ethnicity.

The Complaint consisted of four counts which charged the Respondent as follows:

1. Violation of Canon 2A of the former Code of Judicial Conduct, Judges Should Avoid Impropriety and the Appearance of Impropriety In All of Their Activities (Count 1). Canon 2A provided:

Judges should respect and comply with the law and should conduct themselves at all times in a manner that promotes public confidence in the integrity and impartiality of the Judiciary.

2. Violation of Canon 5A of the former Code of Judicial Conduct, Judges Should Regulate Their Extra–Judicial Activities to Minimize the Risk of Conflict with Their Judicial Duties (Count 2). Canon 5A provided:

Avocational Activities. Judges may write, lecture, teach, and speak on non-legal subjects, and engage in the arts, sports, and other social and recreational activities, if such avocational activities do not detract from the dignity of their office or interfere with the performance of their judicial duties.

3. Violations of Article V, Section 17(b) of the Pennsylvania Constitution, due to each of the violations expressed in Counts 1 and 2 (Counts 3(a) & (b), respectively). Article V, Section 17, Prohibited Activities, in subsection (b), provides in pertinent part:

Justices and judges shall not engage in any activity prohibited by law and shall not violate any canon of legal or judicial ethics prescribed by the Supreme Court.

4. Violation of Article V, Section 18(d)(1) of the Pennsylvania Constitution (Count 4). Article V, Section 18, Suspension, Removal , Discipline and Other Sanctions, in subsection (d)(1), provides in pertinent part:

(d) A justice, judge or justice of the peace shall be subject to disciplinary action pursuant to this section as follows:

(1) A justice, judge or justice of the peace may be suspended, removed from office or otherwise disciplined for ... violation of section seventeen of this article; misconduct in office; ... conduct which prejudices the proper administration of justice or brings the judicial office into disrepute, whether or not the conduct occurred while acting in a judicial capacity or is prohibited by law; or conduct in violation of a canon or rule prescribed by the Supreme Court ....

The Respondent filed an Answer to the Complaint on December 16, 2015. In his Answer, as well as his testimony at a hearing held on December 21, 2015, the Respondent denied having opened or read many of the e-mails that were sent to him and which the Board could not prove were opened by him. The Board maintained that it was able to prove that the Respondent opened (1) those e-mails or e-mail threads wherein the e-mail or e-mail thread indicated that Respondent replied to or forwarded the e-mail, or (2) e-mails, as described in Respondent's deposition or testimony in court, that Respondent remembered seeing all or part of the content thereof.

In accordance with a per curiam order entered on December 22, 2015, the Respondent was suspended from his judicial and administrative responsibilities pending further Order of Court.¹

Trial was scheduled for March 29, 2016. There were numerous motions filed by the parties which were addressed by the Court.

On March 15, 2016, the Respondent resigned his position.

On March 17, 2016, the Board and the Respondent filed Stipulations of Fact in Lieu of Trial pursuant to C.J.D.R.P. No. 502(D)(1) and a Waiver of Right to Trial.

Authority and Jurisdiction of the Court of Judicial Discipline

Section 18 of the Pennsylvania Constitution makes clear that the Court of Judicial Discipline has the limited jurisdiction and power to address a single subject matter; to review and decide formal disciplinary charges filed by the Judicial Conduct Board against a judicial officer. See In re Bruno , 627 Pa. 505, 101 A.3d 635, 661–662 (2014) ; PA. CONST . art. V, § 18 (b)–(d). The constitutional amendment of 1993 establishing this Court provides specific instructions for the conduct of proceedings before this Court:

The subject of the charges shall be presumed innocent in any proceeding before the court, and the board shall have the burden of proving the charges by clear and convincing evidence.

PA. CONST . art. V, § 18 (b)(5).

Clear and convincing evidence is defined as evidence "that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." Matter of Sylvester , 521 Pa. 300, 555 A.2d 1202, 1203–04 (1989).

The Court of Judicial Discipline has the authority to "order removal from office, suspension, censure or other discipline" of judicial officers. In re Bruno , 101 A.3d at 661.

Although the Respondent no longer holds office, our jurisdiction remains unchanged. Once a judicial disciplinary action has been instituted, authority over the disciplinary proceedings does not terminate until a final order and decision is rendered. This policy has been followed in a number of judicial discipline cases, one of the more recent being In re Ciavarella , 108 A.3d 983, 987 (Pa.Ct.Jud.Disc. 2014). In In re Melograne , 571 Pa. 490, 812 A.2d 1164 (2002), our Supreme Court explained the rationale for our authority to proceed with a judicial discipline matter, even after the judicial officer has left office, whether voluntary or not:

The Court of Judicial Discipline exists to police the conduct of the judiciary and assure the public of the integrity of this branch of government ... Thus, we ... hold that the Court of Judicial Discipline has the power to sanction misbehaving judicial officers, regardless of whether they are in office during the pendency of disciplinary proceedings.

812 A.2d at 1167 n. 2.

As stated above, the Board and the Respondent have filed Stipulations of Fact in Lieu of Trial pursuant to C.J.D.R.P. No. 502(D)(1) and a Waiver of Right to Trial. Rule 502 provides:

Rule 502. Trial. Stipulations of Fact. Conclusions of Law. Withdrawal of Complaints or Withdrawal of Counts.

...

(D) Stipulations of Fact.

(1) In lieu of a trial, the parties may submit to the Court stipulations as to all facts necessary to a decision of the issues in the case. The stipulations shall be binding upon the parties and may be adopted by the Court as the facts of the case upon which a decision shall be rendered. When submitted, the stipulations shall be accompanied by a signed waiver of any right to trial granted under the Constitution and the Rules of this Court.

(2) The parties may submit stipulations as to issues of fact, but which do not resolve all relevant issues in the case. In this case, the parties shall be bound by the stipulations and the Court may adopt them and proceed to trial on all remaining factual issues.

(3) In the event the Court rejects stipulations submitted under subsection (1) or (2) above, the Court shall schedule a conference to determine whether the parties shall be afforded the opportunity to submit revised stipulations or whether the case should proceed to trial.

Two principles are firmly established in cases involving judicial discipline. First, in all cases, this Court is required to make an independent evaluation of the evidence, whether stipulated to or determined after a hearing, in order to decide whether the allegations have been proven by clear and convincing evidence, and whether the conduct in issue violates the Pennsylvania Constitution or the Canons.² This review must be conducted on a case-by-case basis. In re Berkhimer , 593 Pa. 366,930 A.2d 1255, 1258 (2007).³

Secondly, where the parties enter into stipulations of fact which are accepted by the Court, the facts so stipulated will be considered to have been proven as if the party bearing the burden of proof has produced clear and convincing evidence. See e.g. In re Zelloe , 686 A.2d 1034 (D.C. 1996) (attorney discipline); In re Wilfong , 234 W.Va. 394, 765 S.E.2d 283, 291 (2014) ;

In addition to factual stipulations, the parties have also stipulated to the authenticity and admissibility of all exhibits set forth in their respective pre-trial memoranda, filed of record, and to the authenticity and admissibility of all exhibits entered of record during the hearing held on December 21, 2015, also filed of record.

The parties have additionally stipulated to the authenticity and admissibility of the following, all of which have been filed and are contained in the record:

(1) the self-report letter to the Board drafted by the Respondent on October 17, 2014;(2) the Notice of Full Investigation (NOFI) issued by the Board to the Respondent on October 27, 2014;

(3) the Respondent's November 5, 2014 response to the Board's NOFI;

(4) three reports of interview with the Respondent written by investigator Jack Harlacker dated October 17, 20, and 24, 2014; and

(5) the deposition of the Respondent conducted by Board counsel on October 20, 2015.

Also on March 17, 2016, the parties filed the following:

• FORMER JUSTICE J. MICHAEL EAKIN'S WAIVER OF RIGHTS—which was filed in conformity with C.J.D.R.P. Nos. 421 and 502;

• FORMER JUSTICE J. MICHAEL EAKIN'S WAIVER OF PRESENCE AT FINAL PRE–TRIAL CONFERENCE; and

• The

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